Grilling starts as Kagan makes her case

WASHINGTON - Republican senators sought yesterday to define Supreme Court nominee Elena Kagan as a lawyer more in tune with partisan politics than with the original meaning of the Constitution.

WASHINGTON - Republican senators sought yesterday to define Supreme Court nominee Elena Kagan as a lawyer more in tune with partisan politics than with the original meaning of the Constitution.

For her part, Kagan pledged to be an impartial jurist and told the Senate Judiciary Committee: "I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law."

Senators and Kagan, a former dean of the Harvard Law School who has never served as a judge, staked out perspectives as the Senate panel began confirmation hearings on President Barack Obama's nomination of Kagan to succeed retiring Justice John Paul Stevens.

Kagan, now U.S. solicitor general, told the committee that she recognizes the limits of the Supreme Court's authority. The court, she said, "must be properly deferential to the decisions of the American people and their elected representatives."

Sen. John Cornyn, R-Texas, told Kagan that he will use the hearings, expected to last much of the week, to determine whether she would take the Supreme Court in what he called "a traditional or activist direction." He said the latter - a "stark contrast to the founders' vision" - would be unacceptable to him.

The Senate committee's senior Republican, Sen. Jeff Sessions of Alabama, offered a blistering opening statement that condemned Kagan for associating "with well-known activist judges who use their power to redefine the meaning of the words of our Constitution."

Sessions was referring to retired federal appellate judge Abner Mikva, the late Justice Thurgood Marshall and Aharon Barak, a former president of the Supreme Court of Israel. Kagan has mentioned all three as being among her judicial role models.

Sessions also criticized some of Kagan's past political writings and actions, one of which he said "seems to bemoan socialism's demise."

Sessions also led Republican committee members in criticizing Kagan for barring military recruiters from the campus career center when she was serving as the dean of Harvard Law. At the time, Kagan said the military's "don't ask, don't tell" policy amounted to discrimination against gays, violating Harvard institutional policy.

Sessions vowed that Republicans will not ignore the episode. "Her actions punished the military and demeaned our soldiers," Sessions said.

Senate Republican Conference Chairman Jon Kyl, R-Ariz., charged that Kagan's background was too political to merit a seat on the Supreme Court. Kyl said "naked political judgment" was evident throughout her writings. He also said that during her tenure as a law clerk to Marshall, she made recommendations "based largely on her own liberal policy preferences."

The 12 Democrats on the Judiciary Committee spent much of their opening statements extolling Kagan's background.

Sen. Dianne Feinstein, D-Calif., said, "Over 170,000 documents have unmasked her as an even-handed legal scholar with a sterling reputation."

Though some Republicans, including Sessions, have said they did not have enough time to examine the documents - Obama nominated Kagan seven weeks ago yesterday - Democrats said the process had been sufficiently transparent.

Sen. Charles Schumer, D-N.Y., said Kagan had provided ample documentation of her activities. "The only thing, as far as I can tell, that we don't have is her kindergarten report card," Schumer said.

Although all committee Democrats praised Kagan's background, some said that they had no intention of waiving their right to question her before giving final approval.

Sen. Herb Kohl, D-Wis., who praised Kagan's "impeccable resume," told her: "I have put each nominee to a test of judicial excellence, and your nomination will be no different."

Sessions said that Kagan, in previous academic writing, has called for more substantive confirmation hearings than have been the historic norm.

Paraphrasing Kagan, Sessions said that "nominees for a lifetime position owe a greater degree of candor and openness to the committee." He said he agreed with such an approach.

The hearings resume today when senators begin questioning Kagan.

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